I started working for my current employer on STEM-OPT, but I’ve lost out in the H-1B lottery four times. Thankfully, my employer transferred me to an international office, and I am now coming back to the U.S. on an L-1 visa.
I’ve heard many complaints from my classmates about not being able to switch employers on an L-1 visa. I don’t see myself staying at my employer for six more years, which is the estimated time until I can get a green card based on my employer’s internal policy.
What are my options for changing my immigration status so I can work at a startup in the U.S. within a year or two?
— Tenacious Transferee
Welcome back to the United States! Thanks for sharing your immigration story and reaching out to me about options. I love to hear about employers that are willing to go the extra mile to retain talented international hires!
Before I dive into your question about your options, let’s go over some basics about work visas and employment-based green cards.
Work Visa Basics
A work visa, which is also called a nonimmigrant visa, is tied to the employer that offers you a job, sponsors you for the visa, and files the visa application on your behalf. A work visa enables you to live in the U.S. and work for that employer for a limited amount of time.
The L-1A visa for an intracompany transferee manager or executive and the L-1B visa for an intracompany transferee with specialized knowledge are both temporary work visas. The L-1A allows for a maximum stay of seven years in the U.S. — three years initially followed by two renewals that give you two years each. The L-1B provides for a maximum stay of five years in the U.S. — three years initially and then one two-year renewal.
Regardless of which visa you have when you switch jobs, your new employer will likely need to petition you for a new nonimmigrant work visa before you start your new role. Be mindful about maintaining your status by legally working and receiving pay stubs before you change your status to the future company so that you can remain in the U.S. for the switch and keep any future green card applications safe.
Also, keep in mind that when you enter the U.S. or talk with U.S. immigration officials while you have a nonimmigrant visa, you must demonstrate that you intend to eventually return to your home country unless you are seeking certain classes of nonimmigrant status such as H-1B specialty occupation, an O-1 extraordinary ability or an L-1 intracompany transferee.
The H-1B and L-1 are dual-intent visas, which means they are nonimmigrant visas, but you can express your intent to pursue a green card to remain in the U.S. permanently. While not technically a dual-intent visa, the O-1 allows for dual-intent: an individual does not have to maintain foreign residency and filing for a green card does not disqualify the individual from obtaining or keeping an O-1 visa.
Green Card Basics
An employment-based green card, also called an immigrant visa, lets you live and work permanently in the U.S. An employer sponsor is often required for most employment-based green card categories, including the:
- EB-1C green card for multinational managers or executives, for which L-1A visa holders are usually eligible if the U.S. company has been doing business at least one year.
- EB-2 green card for individuals with advanced degrees or exceptional ability.
- EB-3 green card for skilled workers.
However, there are two employment-based green cards that individuals can apply for on their own without an employer sponsor or even a job or job offer:
A minimum of 140,000 employment-based green cards are available each year. Leftover family green cards from the previous year get added to the employment-based green card category, so 200,000 are available in the current fiscal year, which ends on September 30.
In addition to the limit on the number of employment-based green cards, each green card category is allocated 28.6 % of the total, and there’s an annual per-country cap of 7% for each green card category. That means each year only 7% of each green card category can go to individuals born in one country. Because of this, individuals born in India or China generally face the longest waits for a green card.
You Have Options!
Since you don’t want to stick with your current employer for six years to go through their entire green card sponsorship process, I suggest that you build up your qualifications to apply for an EB-1A or EB-2 NIW on your own as soon as you can.
Consult an immigration attorney to tailor a strategy based on your circumstances, timing, and goals. It could be valuable for you to go through the PERM process with your current employer and get an I-140 approved to obtain a priority date. Or, it might be helpful to stay until your I-485 has been pending for at least 180 days to enjoy the benefits of AC21 portability to change to a similar occupation at another company. If you were born in either India or China, aim for the EB-1A, since the EB-2 category has particularly long waits for individuals born in those countries. The EB-1A is the quickest green card to get and often takes one or two years overall.
To qualify for the EB-1A green card, you must meet at least three of 10 criteria, although I often urge my clients to aim for four or more to present a strong case. For more detail about each criterion and what qualifies, check out this Ask Sophie™ column.
Until you get a green card, make sure you have a valid work visa to live and work in the U.S. Would your current employer be willing to register you again in the H-1B lottery? Perhaps the fifth time’s the charm?
If you find your dream job at a startup before you get your green card, the startup could “transfer” your H-1B visa, which means the startup must still apply for an H-1B on your behalf, but you won’t have to go through the lottery process again. Another option is to have your new employer sponsor you for an O-1A extraordinary ability visa. For the O-1A, you must meet at least three of eight criteria, which are similar to the EB-1A criteria.
Take a look at this previous Ask Sophie™ column to understand how to present a strong O-1A visa or EB-1A green card application. The question I answered in that column came from a startup founder, but much of what I say there applies to all.
You’ve got this!
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The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!